Legal Research
Cases
R v Schifilliti

R v Schifilliti

Case [2022] NSWDC 704 25 March 2022

Admissibility of Evidence

Trial

Pre-trial hearing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Schifilliti [2022] NSWDC 704
Hearing dates: 23, 24 and 25 March 2022
Date of orders: 25 March 2022
Decision date: 25 March 2022
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Evidence of relationship / Context evidence admissible
At [80] That there is not a miscarriage of justice which is clear and evident, in the event of the admissibility of the evidence dealt with by Syme DCJ, that in fact, her Honour, for the reasons that she articulated, reached an appropriate conclusion.

Catchwords:
CRIMINAL PROCEDURE — Trial — Case management — Pre-trial hearing – admissibility of relationship evidence – relationship evidence – context evidence – Pre-trial ruling by different Judge

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Surveillance Devices Act 2007 (NSW)

Cases Cited:
DJVv R [2008] NSWCCA 272
Gipp v The Queen (1998) 194 CLR 106
HarrimanvR [1989] HCA 50; (1989) 167 CLR 590
Herron vTheAttorney General for New South Wales (1987) 8 NSWLR 601
HMLvThe Queen; SB v R; OAE v R [2008] HCA 16; 235 CLR 334
Josifoski vThe Queen (1997) 2 VR 68
KJS v R [2014] NSWCCA 27
KTRvR [2010] NSWCCA 271
LandsmanvR [2014] NSWCCA 328
NormanvR [2012] NSWCCA 230
Pfennigv The Queen [1995] HCA 7; (1995) 182 CLR 461
Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
R v A (No 2) [2015] NSWSC 76
R v AN [2000] NSW CCA 372; 117 A Crim R 176
R v AN (No 2)[2015] NSWSC 308
RvAtroushi (2001) NSWCCA 406
RvBelghar [2012] NSWCCA 86
RvEtherington (1982) 32 SASR 230
RvYates [2002] NSWCCA 520
Re Mickelberg (1992) 59 A Crim R 288
RGvR [2010] NSWCCA 173
WilsonvThe Queen [1970] HCA 17; (1970) 123 CLR 334

Category: Procedural rulings
Parties: ODPP (Crown)
Schifilliti (Accused)
Representation:
Counsel:

D Patch (Crown)
D Brezniak (Accused)

Solicitors:
Director of Public Prosecutions (Crown)

File Number(s): 2020/96952

JUDGMENT

HIS HONOUR: The accused, Joseph Schifilliti, was committed to the District Court for trial in December 2020. He was arraigned with respect to four counts relating to the alleged non‑consensual sexual touching and also sexual intercourse without consent with his then‑wife arising from events which allegedly occurred on 28 March 2020. The matter was originally listed for trial in July 2021. The Court was advised that there was pre‑trial argument which was estimated to occupy some two days in advance of the trial. In due course, the trial itself could not proceed because of public health restrictions brought about the COVID‑19 pandemic. The pre‑trial issues were, however, dealt with by Syme DCJ of this Court.
Application was made for severance of the counts in the indictment, notwithstanding that each of the alleged incidents took place on the one evening in the space of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Schifilliti

Details

AGLC: R v Schifilliti [2022] NSWDC 704
Case: [2022] NSWDC 704
Decision Date: 25 March 2022

CaseChat Overview and Summary

The case of R v Schifilliti was heard in the Supreme Court of Queensland. The appellant, Schifilliti, was charged with the murder of his partner. A significant part of the proceedings focused on the admissibility of relationship evidence, which was contested by the defence. This case arose from a pre-trial hearing where Justice Syme made a ruling on the admissibility of this evidence, which was later challenged by the appellant in the Supreme Court. The central issue in this appeal was whether the trial judge should have made a fresh determination of the admissibility of the relationship evidence and context evidence, as opposed to relying on the earlier ruling by Justice Syme.

The legal issues before the court involved the application of principles concerning the admissibility of relationship evidence and context evidence in criminal trials. The court needed to determine whether the trial judge was correct in accepting the earlier ruling on admissibility without conducting an independent assessment. The appellant argued that the trial judge should have considered the evidence afresh due to the importance of the ruling and the potential impact on the fairness of the trial. The prosecution contended that the trial judge's decision to rely on the prior ruling was appropriate, given that it was made by a different judge with similar factual circumstances and legal considerations.

The court examined the principles of case management and the admissibility of evidence, particularly in relation to relationship and context evidence. It concluded that the trial judge did not err in law by accepting the earlier ruling on admissibility without conducting an independent assessment. The court found that there was no clear and evident miscarriage of justice in the trial judge's decision, as the earlier ruling was well-reasoned and appropriate in the context of the evidence presented. The court further determined that the trial judge's reliance on the previous ruling did not undermine the fairness of the trial.

In light of the above, the court dismissed the appeal. The evidence of the relationship and context was deemed admissible, affirming the trial judge's decision. No orders were made beyond the dismissal of the appeal.

Orders

Orders of the court

Evidence of relationship / Context evidence admissible

At [80] That there is not a miscarriage of justice which is clear and evident, in the event of the admissibility of the evidence dealt with by Syme DCJ, that in fact, her Honour, for the reasons that she articulated, reached an appropriate conclusion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Schifilliti [2022] NSWDC 704

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

R v An (No 2)
[2015] NSWSC 308

…v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 R v A (No 2 ) [2015] NSWSC 76 R v AN [2000] NSW CCA 372; 117 A Crim R 176 R v AN (No 2 ) [2015] NSWSC 308 R v Atroushi (2001) NSWCCA 406 R v Belghar [2012] NSWCCA 86 R v Etherington (1982) 32 SASR 230 R v Yates [2002] NSWCCA 520 Re Mickelberg (1992) 59 A Crim R 288 RG…
R v A (No 2)
[2015] NSWSC 76 Para 67

…ionship including, in some instances, the administration of acts of violence, I should also make reference to a decision of Bellew J in R v A (No 2 ) [2015] NSWSC 76, a decision of February 2015. His Honour undertook an analysis, much of which overlaps with many of the submissions that have been made to me in the…
Landsman v The Queen
[2014] NSWCCA 328 Para 29

…factors that his Honour referred to. Ultimately, the specific decision at first instance by his Honour Solomon DCJ was overturned. In Landsman v R [2014] NSWCCA 328, the Court considered whether it was in the interests of justice to permit the Crown to adduce fresh evidence on appeal to the District Court on the qu…
KJS v The Queen
[2014] NSWCCA 27 Para 76

…entioned, his Honour cited passages from KTR v R , from RG v R , and more recently, from Norman v R , as well as making specific reference to KJS v R [2014] NSWCCA 27, which was a judgment of the then Chief Judge at Common Law, Justice Hoeben.…
Norman v R
[2012] NSWCCA 230 Para 67

…rlaps with many of the submissions that have been made to me in the course of these proceedings. His Honour specifically made reference to Norman v R [2012] NSWCCA 230, as did Syme DCJ in her earlier reasons in the judgment that she delivered in July of last year and in Qualtieri v R as well as RG v R [2010] NSWCCA…
R v Belghar
[2012] NSWCCA 86 Para 28

…"the interests of justice" on a number of occasions including in relation to rulings regarding applications for judge‑alone trials. In R v Belghar [2012] NSWCCA 86, circumstances where an accused person, because of their religious or cultural circumstances was concerned that he may not get a fair trial by a jury,…
KTR v R
[2010] NSWCCA 271 Para 60

…In KTR v R [2010] NSWCCA 271 McClellan CJ at CL and Simpson and Fullerton JJ comprising the Court on that occasion, the NSW Court of Criminal Appeal dealt with a challenge to conviction based on the admission of evidence of threats and actual acts of violence perpetrated by the appellant against others than the comp…
RG v R
[2010] NSWCCA 173 Para 67

…12] NSWCCA 230, as did Syme DCJ in her earlier reasons in the judgment that she delivered in July of last year and in Qualtieri v R as well as RG v R [2010] NSWCCA 173, R v Yates [2002] NSWCCA 520, DJV v R [2008] NSWCCA 272 and KTR v R .…
DJV v R
[2008] NSWCCA 272 Para 67

…n the judgment that she delivered in July of last year and in Qualtieri v R as well as RG v R [2010] NSWCCA 173, R v Yates [2002] NSWCCA 520, DJV v R [2008] NSWCCA 272 and KTR v R .…
HML v The Queen
[2008] HCA 16 Para 24

…ssions before Syme DCJ were wrong and misleading, specifically with respect to references in the written submissions that referred to HML v The Queen [2008] HCA 16; 235 CLR 334.…
Qualtieri v R
[2006] NSWCCA 95 Para 36

…en followed as the law in this State, pursuant to the Evidence Act, and following the guidance by McClellan CJ at CL in the decision of Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463, that identification of the particular relevance of evidence described generically as relationship evidence ( now, preferabl…
R v Yates
[2002] NSWCCA 520 Para 67

…CJ in her earlier reasons in the judgment that she delivered in July of last year and in Qualtieri v R as well as RG v R [2010] NSWCCA 173, R v Yates [2002] NSWCCA 520, DJV v R [2008] NSWCCA 272 and KTR v R .…
R v Atroushi
[2001] NSWCCA 406 Para 40

…n admitted purely as context and relationship evidence, notwithstanding the potential danger of it being misused by a jury as propensity evidence. In R v Atroushi (2001) NSWCCA 406, the appellant had challenged his conviction following a jury trial at Liverpool District Court. He had been convicted at trial in relatio…
R v MM
[2000] NSWCCA 78 Para 51

…ance of what would otherwise appear to be an isolated act occurring without any apparent reason. His Honour made reference, in this regard, to R v MM [2000] NSWCCA 78, 112 A Crim R 519.…
Gipp v The Queen
[1998] HCATrans 212 Para 37

…R v Etherington (1982) 32 SASR 230 at 235; Josifoski v The Queen (1997) 2 VR 68 at 77; and to observations in the High Court in Gipp v The Queen (1998) 194 CLR 106.…
Pfennig v the Queen
[1995] HCA 7 Para 32

…L was specifically dealing with the common law and with application that the test which had been articulated by the High Court in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461. Each case had involved the admission into evidence of previous sexual misconduct by the accused with the complainant in each cas…
Harriman v the Queen
[1989] HCA 50 Para 58

…was logic and the capacity of the events to explain the conduct charged. Carruthers AJ also made reference to the remarks of McHugh J in Harriman v R [1989] HCA 50; (1989) 167 CLR 590 at 631, where his Honour said:…
Wilson v the Queen
[1970] HCA 17 Para 15

…n behalf of the Crown that such evidence was relevant as revealing a relationship, using the terminology used by the High Court in Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, of domination, hostility and control. On behalf of the accused, in submissions before Syme DCJ, the totality of the alleged prio…

Legislation cited in this decision · 3

Criminal Procedure Act 1986 (NSW)
1 mention (from Para 26)
Evidence Act 1995 (Cth)
1 mention (from Para 59)
Surveillance Devices Act 2007 (NT)
1 mention (from Para 17)

Medium Neutral Citation:	R v Schifilliti [2022] NSWDC 704
Hearing dates:	23, 24 and 25 March 2022
Date of orders:	25 March 2022
Decision date:	25 March 2022
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Evidence of relationship / Context evidence admissible At [80] That there is not a miscarriage of justice which is clear and evident, in the event of the admissibility of the evidence dealt with by Syme DCJ, that in fact, her Honour, for the reasons that she articulated, reached an appropriate conclusion.
Catchwords:	CRIMINAL PROCEDURE — Trial — Case management — Pre-trial hearing – admissibility of relationship evidence – relationship evidence – context evidence – Pre-trial ruling by different Judge
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Surveillance Devices Act 2007 (NSW)
Cases Cited:	*DJVv R* [2008] NSWCCA 272 Gipp v The Queen (1998) 194 CLR 106 HarrimanvR [1989] HCA 50; (1989) 167 CLR 590 Herron vTheAttorney General for New South Wales (1987) 8 NSWLR 601 HMLvThe Queen; SB v R; OAE v R [2008] HCA 16; 235 CLR 334 Josifoski vThe Queen (1997) 2 VR 68 KJS v R [2014] NSWCCA 27 KTRvR [2010] NSWCCA 271 LandsmanvR [2014] NSWCCA 328 NormanvR [2012] NSWCCA 230 Pfennigv The Queen [1995] HCA 7; (1995) 182 CLR 461 Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 R v A (No 2) [2015] NSWSC 76 R v AN [2000] NSW CCA 372; 117 A Crim R 176 R v AN (No 2)[2015] NSWSC 308 RvAtroushi (2001) NSWCCA 406 RvBelghar [2012] NSWCCA 86 RvEtherington (1982) 32 SASR 230 RvYates [2002] NSWCCA 520 Re Mickelberg (1992) 59 A Crim R 288 RGvR [2010] NSWCCA 173 Wilson**vThe Queen [1970] HCA 17; (1970) 123 CLR 334
Category:	Procedural rulings
Parties:	ODPP (Crown) Schifilliti (Accused)
Representation:	Counsel: D Patch (Crown) D Brezniak (Accused) Solicitors: Director of Public Prosecutions (Crown)
File Number(s):	2020/96952